Professional Documents
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Australian Judicial Review
Australian Judicial Review
Volume 6 Issue 2
January 2007
Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons
Recommended Citation
Kathleen E. Foley, Australian Judicial Review, 6 WASH. U. GLOBAL STUD. L. REV. 281 (2007),
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AUSTRALIAN JUDICIAL REVIEW
KATHLEEN E. FOLEY ∗
INTRODUCTION
∗ B.A., LL.B. (Hons) (U.W.A.), LL.M. (Harv.). Associate, Orrick, Herrington & Sutcliffe LLP.
I wish to thank Rosalind Dixon for her valuable insights and support, as well as the following
members of the Harvard Law School faculty for their comments and encouragement: Professor
Charles Fried, Professor Richard Fallon, and Dean Elena Kagan. The opinions expressed in this Article
are those of the author alone and do not necessarily represent the views of Orrick, Herrington &
Sutcliffe LLP or any of its clients.
1. Austl. Communist Party v. Commonwealth (1951) 83 C.L.R. 1, 262–63 (Fullagar, J.)
[hereinafter Communist Party Case].
2. Mark Tushnet, Alternative Forms of Judicial Review, 101 MICH. L. REV. 2781, 2784 (2003).
3. Mary Crock & Ronald McCallum, Australia’s Federal Courts: Their Origin, Structure, and
Jurisdiction, 46 S.C. L. REV. 719, 733 (1995).
4. This Article uses the term “judicial review” to refer to the High Court’s exercise of its power
to declare statutes passed by federal, state, or territory legislatures to be unconstitutional. See, e.g.,
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). As will be discussed, the High Court often refers
to Marbury when seeking to establish the basis of Australian judicial review. E.g., Communist Party
Case (1951) 83 C.L.R. at 262. This Article will not examine judicial review of executive or
administrative action.
281
years, from 1903 to 1919, and Sir Owen Dixon’s tenure as Chief Justice
from 1952 to 1964. 5 Second, this Part considers the Mason Court (1987-
1995), 6 which was the first High Court to conduct its work without the
oversight of the Privy Council. 7 Widely regarded as Australia’s most
activist High Court, the Mason Court took a very different view of its
judicial review power, 8 making its work of particular interest in this
Article. Finally, Part II studies the contemporary High Court, the Gleeson
Court, and its attempt to reign in the perceived activism of the Mason
years. Examining the High Court’s constitutional jurisprudence beginning
in 1998, the year of Chief Justice Gleeson’s appointment, 9 this Article
contends that the Gleeson Court’s approach to judicial review bears many
hallmarks of the legalistic approach adopted by the early High Court.
5. Leslie Zines, Dixon Court, in THE OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA
220 (Tony Blackshield et al. eds., 2001) [hereinafter OXFORD COMPANION].
6. At the outset, it is important to emphasize Sir Gerard Brennan’s observation that, although
describing phases of the Court by reference to the presiding Chief Justice is “a useful shorthand,” it is
not meant to diminish the contribution of each member of the Court during any particular period of
time. Sir Gerard Brennan, A Tribute to Sir Anthony Mason, in COURTS OF FINAL JURISDICTION: THE
MASON COURT IN AUSTRALIA 10 (Cheryl Saunders ed., 1996) [hereinafter COURTS OF FINAL
JURISDICTION]. Moreover, it should be noted that the eras of the High Court’s work discussed in this
Article certainly have blurred edges. For example, some of the hallmarks of the Mason Court’s
approach can certainly be seen in cases decided prior to Mason’s appointment as Chief Justice.
7. Keith Mason, Citizenship, in COURTS OF FINAL JURISDICTION, supra note 6, at 43.
8. Cheryl Saunders, The Mason Court in Context, in COURTS OF FINAL JURISDICTION, supra
note 6, at 7.
9. Bret Walker, Gleeson, (Anthony) Murray, in OXFORD COMPANION 305 (Tony Blackshield et
al. eds., 2001).
10. See COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900, § 9 (U.K.).
11. AUSTL. CONST. pmbl. It should be noted that there are no references to Western Australia in
the preamble. There was a good deal of uncertainty about whether Western Australia would join the
Federation, and the Western Australian referendum on the question was not held until three weeks
after the enactment of Australia’s Constitution. Consequently, Covering Clause 3 of the Constitution
provided for Western Australia’s possible late entry. Documenting a Democracy: Australia’s Story,
http://www.foundingdocs.gov.au/item.asp?dID=11 (last visited Sept. 8, 2007).
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12. JOHN A. LA NAUZE, THE MAKING OF THE AUSTRALIAN CONSTITUTION 1–2 (1972). See also
N.K.F. O’Neill, Constitutional Human Rights in Australia, 17 FED. L. REV. 85, 85 (1987).
13. PETER J. HANKS & DEBORAH CASS, AUSTRALIAN CONSTITUTION LAW: MATERIALS AND
COMMENTARY 4 (6th ed. 1999).
14. See Stephen Gageler, Foundations of Australian Federalism and the Role of Judicial Review,
17 FED. L. REV. 162, 164 (1987).
15. Contemporary Australia has six states (New South Wales, Queensland, South Australia,
Tasmania, Victoria and Western Australia), two mainland territories (the Australian Capital Territory
and the Northern Territory), and a number of external territories. CIA—The World Factbook—
Australia, http://www.cia.gov/library/publications/the-world-factbook/geos/as.html (last visited Sept.
8, 2007).
16. Although this Article uses the word “federal,” the Constitution itself employs the term “the
Parliament of the Commonwealth.” AUSTL. CONST. § 1. Section 51 is the principal provision granting
and outlining the federal legislature’s powers. AUSTL. CONST. § 51.
17. Simply put, this form of government involves “an executive government chosen from and
responsible to Parliament.” Sir Anthony Mason, The Role of a Constitutional Court in a Federation: A
Comparison of the Australian and the United States Experience, 16 FED. L. REV. 1, 3 (1986).
18. AUSTL. CONST. § 1.
19. Id. § 7 (regarding the Senate), § 24 (regarding the House of Representatives).
20. Id. § 7.
21. Id. § 64.
22. Gageler, supra note 14, at 172. Bruce Ackerman describes the Australian Constitution as a
“fascinating hybrid of British and American elements.” Bruce Ackerman, The New Separation of
Powers, 113 HARV. L. REV. 633, 674 (2000).
23. See Gageler, supra note 14, at 164.
24. See Mason, supra note 17, at 4.
25. AUSTL. CONST. § 71.
26. Id. § 73; Erin Daly, United States Supreme Court, in OXFORD COMPANION 693 (Tony
Blackshield et al. eds., 2001).
27. However, cases relating to “the limits inter se of the Constitutional powers of the
Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional
powers of any two or more States” required, pursuant to § 74 as originally enacted, a certificate from
the High Court to be appealed. AUSTL. CONST. § 74.
28. The passage of the Australia Acts, 1986 (Austl.) and (U.K.) marked the final step in the
abolition of appeals from Australian courts to the Privy Council. This abolition process began with the
Privy Council (Limitation of Appeals) Act, 1968 (Austl.) and the Privy Council (Appeals from the
High Court) Act, 1975 (Austl.). Mason, supra note 17, at 3; JM Bennett, Establishment of Court, in
OXFORD COMPANION 247 (Tony Blackshield et al. eds., 2001). Although in theory an avenue remains
to bring appeals to the Privy Council, the possibility is foreclosed for all practical purposes. See
HANKS & CASS, supra note 13, at 27.
29. See HANKS & CASS, supra note 13, at 28.
30. Section 61 of the Australian Constitution vests the executive power of the Commonwealth in
the Queen, exercisable by the Governor-General as the Queen’s representative. AUSTL. CONST. § 61.
In a 1999 referendum, Australians voted against amending the Constitution to change Australia from a
constitutional monarchy to a republic. Australian Election Commission, http://www.aec.gov.au/
Elections/referendums/1999_Reforendum_Reports_Statistics/key_Results.htm (last visited Sept. 8,
2007).
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31. Disagreement exists regarding the framers’ intentions in not including a written Bill of
Rights. The conventional view is that the framers considered the possibility of including a written Bill
of Rights but decided against it, believing that rights would be adequately protected by the common
law and legislatures. Tony Blackshield, Bill of Rights, in OXFORD COMPANION 62 (Tony Blackshield
et al. eds., 2001). However, some scholars take issue with this view. See, e.g., GEORGE WILLIAMS,
HUMAN RIGHTS UNDER THE AUSTRALIAN CONSTITUTION 25 (1999).
32. Blackshield, supra note 31, at 62–63.
33. Adrienne Stone notes that the constitutional provisions most often categorized as “express
rights” include sections 116 (the free exercise of religion), 80 (the right to a jury trial), 51(xxxi) (the
“just terms” requirement of the acquisition power), and 117 (the prevention of discrimination based on
state residence). Adrienne Stone, Australia’s Constitutional Rights and the Problem of Interpretive
Disagreement, 27 SYDNEY L. REV. 29, 31 (2005).
34. An example is the implied freedom of political communication. See, e.g., Lange v. Austl.
Broad. Corp. (1997) 189 C.L.R. 520.
35. See David S. Bogen, The Religion Clauses and Freedom of Speech in Australia and the
United States: Incidental Restrictions and Generally Applicable Laws, 46 DRAKE L. REV. 53, 56
(1997).
36. See Collins J. Seitz, Judicial Review and the American Constitution, 17 FED. L. REV. 1, 3
(1987).
37. Mason states there has been “unqualified acceptance” of judicial review’s legitimacy. Mason,
supra note 17, at 6. See also Gerhardy v. Brown (1985) 159 C.L.R. 70, 157–58 (Dawson, J.); In the
Marriage of Cormick (1984) 156 C.L.R 170, 177 (Gibbs, C.J.); Vict. v. Commonwealth (1975) 134
C.L.R. 338, 364 (Barwick, C.J.) [hereinafter Victoria v. Commonwealth]. However, some scholars
question the constitutionality of judicial review in Australia. See, e.g., P.H. LANE, LANE’S
COMMENTARY ON THE AUSTRALIAN CONSTITUTION 14 (2d ed. 1997) [hereinafter LANE’S
COMMENTARY]; James A. Thomson, Constitutional Authority for Judicial Review: A Contribution
from the Framers of the Australian Constitution, in THE CONVENTION DEBATES 1891–1898:
COMMENTARIES, INDICES AND GUIDE 173 (Gregory Craven ed., 1986).
38. See Justice Michael Kirby, Judicial Review in a Time of Terrorism—Business as Usual, 22 S.
AFR. J. HUM. RTS. 21, 22–24 (2006).
39. See generally id.
40. AUSTL. CONST. covering clause 5.
41. O’Toole v. Charles David Proprietary Ltd. (1991) 171 C.L.R. 232, 251 (Mason, C.J.); id. at
272 (Brennan, J.).
42. Although Lane sees no constitutional basis for judicial review, his outline of this argument is
useful. LANE’S COMMENTARY, supra note 37, at 13–14.
43. AUSTL. CONST. § 76(i).
44. Mason, supra note 17, at 6. In this regard, Mason also refers to section 74 of the Constitution.
Id.
45. (2003) 211 C.L.R. 476 (Gleeson, C.J.).
46. Id. at 513.
47. Id. at 513–14.
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48. Id.
49. Section 109 is the equivalent of the Supremacy Clause of the United States Constitution. U.S.
CONST. art. VI, para. 2. See THE OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA 140 (Tony
Blackshield et al. eds., 2001).
50. Mason, supra note 17, at 6.
51. Brian J. Galligan, Judicial Review in the Australian Federal System: Its Origin and Function,
10 FED. L. REV. 367, 381 (1979); Mason, supra note 17, at 3; HANKS & CASS, supra note 13, at 20;
George Winterton, The Communist Party Case, in AUSTRALIAN CONSTITUTIONAL LANDMARKS 108,
127 (H.P. Lee & George Winterton eds., 2003).
52. See Galligan, supra note 51, at 379 (citing Federal Convention Debates (Adelaide, 1897)).
53. Id.
54. Id. at 379–80; Gageler, supra note 14, at 174. But see Thomson, supra note 37.
55. Galligan, supra note 51, at 372. Galligan notes that while federalism was a “mature and well-
tried” system of government in North America, it was new to Australians. Id.
56. See id. at 381.
57. Mason, supra note 17, at 6.
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67. See, e.g., The Queen v. Kirby; Ex parte Boilermakers’ Soc’y of Austl. (Boilermakers) (1956)
94 C.L.R. 254, 267–68 (Dixon, C.J., McTiernan, Fullagar, and Kitto, JJ.).
68. Id.
69. Id. This excerpt is cited with approval in Victoria v. Commonwealth (1975) 134 C.L.R. at
379 (Gibbs, J.).
70. See, e.g., Re Wakim; Ex parte McNally (1999) 198 C.L.R. 511, 569 (Gummow and Hayne,
JJ.). In outlining the basis of the judicial review power, Chief Justice Gleeson also considers it relevant
that written constitutions are usually difficult to amend. See Chief Justice Murray Gleeson, Legality-
Spirit and Principle: The Second Magna Carta Lecture (Nov. 20, 2003), available at
http://www.hcourt.gov.au/speeches/cj/cj_20nov.html (discussing implied rights in the Australian
Constitution). See also P.H. LANE, A MANUAL OF AUSTRALIAN CONSTITUTIONAL LAW 16 (4th ed.
1987) [hereinafter LANE].
71. To American constitutional scholars this fact must seem remarkable, given the enormous
amount of jurisprudential interest in judicial review in the United States. See, e.g., Gordon S. Wood,
Oliver Wendell Holmes Devise Lecture: The Origins of Judicial Review Revisited, or How the
Marshall Court Made More out of Less, 56 WASH & LEE L. REV. 787 (1999).
72. Brian Opeskin, Australian Constitutional Law in a Global Era, in REFLECTIONS ON THE
AUSTRALIAN CONSTITUTION 171, 177–78 (Robert French et al. eds., 2003).
73. Id. at 178. In the United States, as in the Australian system, all courts may also exercise the
judicial review power, whereas in countries such as France and Germany a single judicial body is
granted exclusive power to invalidate legislation. Ackerman, supra note 22, at 668 n.75.
74. See LANE, supra note 70, at 16–17.
75. See id.
76. Id. at 29–30.
77. Judiciary Act § 40 (1903) (Austl.).
78. AUSTL. CONST. § 73(ii); see also Judiciary Act §§ 35, 35AA (1903) (Austl.); Federal Court
of Australia Act § 33 (1976) (Austl.); Family Law Act § 95 (1975) (Austl.). See LANE, supra note 70,
at 16–17.
79. AUSTL. CONST. §§ 75, 76; Judiciary Act § 30 (1903) (Austl.); See LANE, supra note 70, at
16–17.
80. Victoria v. Commonwealth (1975) 134 C.L.R. at 364 (Barwick, C.J.).
81. Mason, supra note 17, at 6. See also In the Marriage of Cormick (1984) 156 C.L.R. at 177
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aptly points out, “the federal government does not argue for a presumption
of constitutionality” and the Federal Parliament (in contrast to the U.S.
Congress) neither makes legislative findings on issues of constitutionality
nor includes such findings in legislation. 82 It must be kept in mind,
however, that in some particular areas of its constitutional jurisprudence
the High Court gives the federal legislature a large degree of discretion in
choosing the means by which to achieve a legislative purpose, which is
itself within the legislature’s power. 83
Finally, as to the effect of a statute being declared unconstitutional, it
has long been accepted that an unconstitutional statute “is not and never
has been a law at all. . . . [I]t is invalid ab initio.” 84
Having outlined the various arguments about the source of the judicial
review power, and its operation in Australia, this Article next examines the
High Court’s exercise of its judicial review power.
In discussing how the High Court exercises its judicial review power,
this Article examines three phases of the High Court. First, the High
Court’s formative years are considered, focusing on how the Court came
to develop its legalistic approach to judicial review. This approach would
dominate the Court from 1903 until 1987, when Sir Anthony Mason
became Chief Justice. 85
Second, this Article examines the Mason Court (1987–1995). Under
Chief Justice Mason’s influence, the High Court broke with its traditional
approach to judicial review, adopting a more radical view of how its
power should be exercised. 86 Focusing on major cases, this section will
illustrate the Mason Court’s style.
Lastly, this Part considers the approach taken by the Gleeson Court
(1998–present) in the post-Mason era. This Article argues that the Gleeson
(Gibbs, C.J.).
82. Mason, supra note 17, at 6–7. On whether a presumption of constitutionality should play a
role in Australian constitutional law, see Henry Burmester, The Presumption of Constitutionality, 13
FED. L. REV. 277 (1983).
83. Mason, supra note 17, at 7.
84. LANE’S COMMENTARY, supra note 37, at 194 (citing Ex rel McKellar v. Commonwealth
(1977) 139 C.L.R. 527, 550, 560 (Gibbs, J.); Victoria v. Commonwealth (1975) 134 C.L.R. at 361
(Barwick, C.J.); Cormack v. Cope (1974) 131 C.L.R. 432, 464–65 (Barwick, C.J.); S. Austl. v.
Commonwealth (1942) 65 C.L.R. 373, 408 (Latham, C.J.)).
85. Kristen Walker, Mason, Anthony Frank, in OXFORD COMPANION 459 (Tony Blackshield et
al. eds., 2001).
86. See id. at 460.
Court has largely and successfully endeavored to retreat from the Mason
Court’s style, returning to a more legalistic approach to exercising judicial
review. However, this Part also shows that the Gleeson Court’s work is
more complex than the label “legalistic” suggests.
The formative years of the High Court marked the development of its
legalistic approach to judicial review. 87 Separating this era into two
distinct halves, this section addresses the High Court’s early years (1903–
1919), and the subsequent consolidation of the legalistic approach under
Chief Justice Dixon (1952–1964).
At the outset, it is necessary to clarify what is meant by a “legalistic”
approach to constitutional decision making. Gageler describes the High
Court’s constitutional legalism as having two elements. 88 First, its
constitutional legalism assumes that “federalism necessarily requires the
Court to play a unique role in determining the constitutionality of
governmental action.” 89 Second, the judiciary’s role consists of no more
than interpreting and enforcing limitations on government power
embodied in the Constitution’s text. 90
To understand this second element, it is important to emphasize that
Australian legalism is deeply rooted in the English common law tradition.
Thus, it is rule–driven, precedent-focused, and greatly prizes certainty in
the law. 91 Moreover, questions of policy and matters of politics are
considered best left to legislators: judges must only apply the law. 92
Australia’s most influential proponent of legalism, Sir Owen Dixon,
strenuously advocated the application of the common law method to the
interpretation of the Constitution. 93 In doing so, he adopted Sir James
Parke’s (later Baron Parke) classic description of common law
methodology. 94 This description gives useful background regarding the
development of Australian constitutional legalism:
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95. Mirehouse v. Rennell (1833), 1 Cl. & F. 527, 546; 6 Eng. Rep. 1015, 1023 (Eng.).
96. See, e.g., Owen Dixon, Upon Taking the Oath of Office as Chief Justice, in JESTING PILATE,
supra note 94, at 249.
97. Id.
98. Anthony Mason, Griffith Court, in OXFORD COMPANION 311 (Tony Blackshield et al. eds.,
2001).
99. Justice Michael Kirby, Sir Anthony Mason Lecture 1996: A. F. Mason—From Trigwell to
Teoh, 20 MELB. U. L. REV. 1087, 1093 (1996).
100. The first bench of the High Court could not be appointed until the enactment of the Judiciary
Act (1903) (Austl.). The High Court first convened on October 6, 1903. High Court of Australia—
About the High Court—History of the High Court, http://www.hcourt.gov.au/about_02.html (last
visited Sept. 16, 2007).
101. (1904) 1 C.L.R. 91.
102. Id. at 108 (Griffith, C.J.).
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was the Court’s duty to determine the validity of federal and state
legislation. 113
Regarding both of these elements, American jurisprudence very much
influenced the Court. Highly influential was Chief Justice Marshall’s
pivotal decision in McCulloch v. Maryland, 114 which dealt in part with the
“conflicting powers of the government of the Union and of its
members.” 115 Indeed, Chief Justice Griffith’s judgment for the High Court
in D’Emden devotes over seven pages to discussing McCulloch, including
a debate about whether constitutional decisions of the United States
Supreme Court should be given any weight in Australian constitutional
law. 116
D’Emden’s holding that a state legislature cannot “fetter, control, or
interfere with, the free exercise of the legislative or executive power of the
Commonwealth . . . unless expressly authorized by the Constitution” 117
was not based on any express provision of the Constitution. Rather, the
limitation was implied in the Constitution. 118 Thus, it is possible to argue
that the High Court took a flexible approach to constitutional
interpretation. Even so, the Court clearly viewed its methodology as
orthodox, considering itself to be acting entirely within the principles of
ordinary statutory interpretation that formed part of the English legal
canon. 119
Interestingly, the Judicial Committee of the Privy Council did not
agree. 120 In Webb v. Outtrim, 121 the Privy Council considered the question
of whether a federal officer, who lived in the State of Victoria and earned
and received his salary in Victoria, was liable to pay tax under Victorian
income tax legislation. 122 This question required the Privy Council to
examine the High Court’s D’Emden decision. 123 The Privy Council
disapproved of D’Emden, holding that the federal officer was liable to
assessment under the state income tax legislation. 124 The Privy Council’s
reasons are interesting, particularly because what seems to principally
aggrieve the Privy Council is the Court’s reliance on Chief Justice
Marshall’s opinion in McCulloch. 125 Moreover, the Privy Council
specifically took issue with the High Court’s approach to constitutional
interpretation outlined in D’Emden. 126 Specifically, their Lordships were
“not able to acquiesce” in the High Court’s “expansion of the canon of
interpretation . . . to consider the knowledge of those who framed the
Constitution and their supposed preferences for this or that model which
might have been in their minds.”127 In disapproving of D’Emden, the Privy
Council not only gave the High Court Justices a serious rebuke, but
delegitimized the High Court’s claim that it merely applied conventional
English common law methods of statutory interpretation to the
Constitution.
The High Court responded forcefully to Webb. In Baxter v.
Commissioners of Taxation (N.S.W.), 128 Chief Justice Griffith (writing also
for Justices Barton and O’Connor) penned what has been described as “the
most vitriolic judgment in the Commonwealth Law Reports.”129
Concluding that a Privy Council decision regarding the parameters of the
Australian Constitution could not “be put any higher than a decision on
foreign law as a question of fact,” the joint Justices held the High Court
not bound by Webb. 130
Ultimately, however, the implied immunity doctrine did not survive,
and with its death also came the demise of the more flexible approach to
constitutional interpretation it supported. The High Court rejected the
implied immunity doctrine, as well as another doctrine developed in the
early years of the Court, the “reserved powers doctrine,” in one of its most
famous decisions, Amalgamated Society of Engineers v. Adelaide
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“of particular importance that the technique of the common law should be
applied to the construction of what he described more than once as a
‘rigid’ Constitution, in order to maintain public confidence in the Court’s
judgments in areas of political conflict.” 166 Thus, as a general proposition,
Dixon considered questions arising under the Constitution as not requiring
a different judicial method than questions arising under the general law.
An important theme emerges from the decisions previously discussed.
From the very earliest High Court decisions to Dixon’s enunciation of the
preferred approach to constitutional interpretation, there existed a clear
insistence on the application of ordinary principles of statutory
interpretation to the interpretation of the Constitution. Given that
“[s]tatutes more readily lend themselves to a legalistic approach,” 167 it is
unsurprising that legalism became such a dominant force in Australian
constitutional interpretation.
However, the High Court’s application of statutory interpretation
principles to the Constitution’s interpretation is problematic, given the
obvious differences between them. For example, while constitutions tend
to be broadly framed so that they can be judicially adapted over time,
statutes generally use more specific language and are usually tailored to
deal with a narrower set of issues or circumstances. 168 Why did the Court
not instead develop different principles of constitutional interpretation
which took into account the Constitution’s unique purpose and
characteristics? One possible answer, that will not be explored here, is that
the Court invoked statutory interpretation methodology—an established
part of English common law—as a way to legitimize its constitutional
interpretation.
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The High Court entered a new phase under Sir Anthony Mason, Chief
Justice from 1987 to 1995. 213 The Justices who served with Mason were
Justice Wilson, who retired in February 1989, 214 and Justices Brennan,
Deane, Dawson, Toohey, Gaudron, and McHugh (who replaced Justice
Wilson). 215 Lasting nearly a decade, and described as “among the most
exciting and important in the Court’s history,” 216 this period was a time of
significant change for Australian law, particularly Australian constitutional
law. 217 It was also a time characterized by controversy over many of the
High Court’s decisions. 218
Diverging from previous High Courts, the Mason Court’s approach to
constitutional adjudication possessed several important distinguishing
characteristics. 219 For example, the Mason Court decidedly favored
substance over form. 220 The Court placed more importance on the purpose
of constitutional provisions, 221 often resulting in an increased reliance on
historical material. 222 Moreover, the Mason Court was more open to
questioning English precedent 223 and demonstrated greater willingness to
consider questions of policy. 224
Cole v. Whitfield 225 exemplifies this purposive approach and
willingness to question precedent. In Cole, one of the Mason Court’s most
significant constitutional decisions, the defendants were charged with
213. Michelle Dillon & John Doyle, Mason Court, in OXFORD COMPANION 459–60 (Tony
Blackshield et al. eds., 2001). Mason served as a Justice of the High Court from 1972–1987. During
Mason’s early years on the Court he pursued a more orthodox judicial approach. Kirby, supra note 99,
at 1089–91.
214. Dillon & Doyle, supra note 213, at 461.
215. Id.
216. Michael Lavarch, The Court, the Parliament and the Executive, in COURTS OF FINAL
JURISDICTION, supra note 6, at 15.
217. E.g., Kirby, supra note 99, at 1088.
218. See id. at 1087–88.
219. Cheryl Saunders, The Mason Court in Context, in COURTS OF FINAL JURISDICTION, supra
note 6, at 3. But cf. Justice Michael McHugh, The Inaugural Sir Anthony Mason Lecture in
Constitutional Law, The Constitutional Jurisprudence of the High Court: 1989–2004 9, 29 (Nov. 26,
2004), available at http://www.law.usyd.edu.au/news/docs_pdfs_images/2004/MasonLecture2004.pdf.
220. For example, in Cole v. Whitfield (1988) 165 C.L.R. 360, 407–08 (the Court), the Mason
Court emphasized that it would look beyond a statute’s form and consider its effect when determining
whether the statute infringed section 92 of the Constitution. See also Saunders, supra note 219, at 3;
McHugh, supra note 219, at 31.
221. Leslie Zines, Sir Anthony Mason, 28 FED. L. REV. 171, 174 (2000) [hereinafter Zines II].
222. Dillon & Doyle, supra note 213, at 462.
223. Id.; McHugh, supra note 219, at 32. See also Saunders, supra note 219, at 3.
224. Zines II, supra note 221, at 174; McHugh, supra note 219, at 32.
225. (1988) 165 C.L.R. 360.
226. Id. at 361–62. The defendants were charged with contravention of Regulations 31(1)(d)(ix)
and (x) and 44(3) of the Sea Fisheries Regulations (1962) (Tas.). Id.
227. See id. at 362–63.
228. AUSTL. CONST. § 92.
229. Cole (1988) 165 C.L.R. at 384 (the Court).
230. See id. at 385, 391–92, 403–04, 407.
231. Id. at 391.
232. Id. at 385–93.
233. Dillon & Doyle, supra note 213, at 462.
234. Id.
235. See generally Mabo v. Queensl. II (1992) 175 C.L.R. 1; Dietrich v. The Queen (1992) 177
C.L.R. 292; Minister for Immigration & Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273; Saunders,
supra note 219, at 3; Dillon & Doyle, supra note 213, at 462.
236. See Lavarch, supra note 216, at 15–16.
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237. See, e.g., Koowarta v. Bjelke-Petersen (1982) 153 C.L.R. 168; Commonwealth v. Tas.
(Tasmania Dams Case) (1983) 158 C.L.R. 1.
238. Dillon & Doyle, supra note 213, at 462.
239. Lavarch, supra note 216, at 16. See generally M.J. Detmold, The New Constitutional Law, 16
SYDNEY L. REV. 228, 228 (1994).
240. Detmold, supra note 239, at 228, 230. It should be noted, however, that much of the Court’s
“rights-protective” work occurred through the development of the common law without reliance on
express constitutional rights provisions. See, e.g., Mabo (1992) 175 C.L.R. 1; Dietrich (1992) 177
C.L.R. 292.
241. AUSTL. CONST. § 117.
242. See text accompanying notes 169–84.
243. (1973) 128 C.L.R. 482.
244. Id. at 489–90 (Barwick, C.J.) (McTiernan, J., agreeing), 493–94 (Menzies, J.), 497–98
(Gibbs, J.). Justice Stephen dissented.
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254. Id. at 487–88 (Mason, C.J.), 508 (Brennan, J.), 528 (Deane, J.), 545–46 (Dawson, J.), 554–
55, 559 (Toohey, J.), 566, 568–70 (Gaudron, J.), 581–82 (McHugh, J.).
255. Id. at 509–10 (Brennan, J.), 566 (Gaudron, J.), 581 (McHugh, J.).
256. See also id. at 527 (Deane, J.), 554 (Toohey, J.).
257. Cf. WILLIAMS, supra note 31, at 128 (arguing that after Street, the hope that other
constitutional rights might be reinterpreted has not yet been realized).
258. (1992) 177 C.L.R. 1.
259. (1992) 177 C.L.R. 106.
260. (1997) 189 C.L.R. 520.
261. Detmold, supra note 239, at 231–32.
262. (1988) 166 C.L.R. 79.
263. The Court invalidated section 22(6)(d)(i) of the Australian Bicentennial Authority Act, 1980
(Austl.) to the extent that it referred to the expression “200 years.” Id. at 101.
264. Davis (1988) 166 C.L.R. at 100 (Mason, C.J., Deane and Gaudron, JJ.), 116 (Brennan, J.).
See also Detmold, supra note 239, at 231.
265. (1992) 174 C.L.R. 455, 483–93 (Deanne and Toohey, JJ.). See also Queensl. Elec. Comm’n
v. Commonwealth (1985) 159 C.L.R. 192, 247–48 (Deane, J.); Kruger v. Commonwealth (1997) 190
C.L.R. 1, 94–97 (Toohey, J.). See generally Wendy Lacey, Inherent Jurisdiction, Judicial Power and
Implied Guarantees Under Chapter III of the Constitution, 31 FED. L. REV. 57 (2003).
266. Leeth (1992) 174 C.L.R. at 501–03 (Gaudron, J.).
267. Id. at 485 (Deanne and Toohey, JJ.).
268. Chief Justice Mason and Justices Brennan, Dawson and McHugh upheld the validity of
section 4(1) of the Commonwealth Prisoners Act, 1967 (Austl.). Id. at 503.
269. Nationwide News (1992) 177 C.L.R. at 62 (Deane and Toohey, JJ.).
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270. Id. at 8. The case was argued by J.R. Sackar Q.C., with G.O’L. Reynolds for the applicant.
271. A.C.T.V. (1992) 177 C.L.R. at 109. The case was argued by Sir Maurice Byers Q.C., with S.J.
Gageler, for the plaintiffs in the first action.
272. See Stephen Gageler, Comment on Implied Rights, in THE CAULDRON OF CONSTITUTIONAL
CHANGE 83, 84 (Michael Coper & George Williams eds., 1997).
273. Id.
274. Nationwide News (1992) 177 C.L.R. at 50–52 (Brennan, J.), id. at 72–80 (Deane and Toohey,
JJ.), id. at 94–95 (Gaudron, J.). The Court relied upon multiple grounds to invalidate the legislation.
See generally Dean Bell et al., Implying Guarantees of Freedom into the Constitution: Nationwide
News and Australian Capital Television, 16 SYDNEY L. REV. 288 (1994).
275. Chief Justice Mason held the entire Part invalid, A.C.T.V. (1992) 177 C.L.R. at 146–47
(Mason, C.J.), as did Justices Deane and Toohey. Id. at 176 (Deane and Toohey, JJ.). Justice Gaudron
held that the operative provisions of the Part were invalid in their entirety. Id. at 224 (Gaudron, J.).
Justice McHugh held that the Part was invalid except in its application to the territories. Id. at 246
(McHugh, J.). Justice Brennan held that the Part was valid except for sections 95D(3) and (4). Id. at
167 (Brennan, J.). Justice Dawson dissented. Id. at 108 (Dawson, J.).
276. Id. at 106, 145–46 (Mason, C.J.), 171–76 (Deane and Toohey, JJ.), 214–17 (Gaudron, J.).
277. Id. at 149–67 (Brennan, J.). Justice McHugh saw a strong case for recognizing the implied
freedom, but found it unnecessary to do so in the case at hand. Id. at 233 (McHugh, J.).
278. Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104; Stephens v. W. Austl.
Newspapers Ltd. (1994) 182 C.L.R. 211.
279. Lange (1997) 189 C.L.R. 520. Mason retired in 1995. Walker, supra note 85, at 459.
280. Lange (1997) 189 C.L.R. at 559 (the Court).
281. Id. at 557–61 (the Court). See also Adrienne Stone, Lange, Levy and the Direction of the
Freedom of Political Communication Under the Australian Constitution, 21 U.N.S.W. L.J. 117, 122
(1998).
282. AUSTL. CONST. §§ 7, 24.
283. Lange (1997) 189 C.L.R. at 560.
284. See, e.g., Adrienne Stone, Rights, Personal Rights and Freedoms: The Nature of the Freedom
of Political Communication, 25 MELB. U. L. REV. 374 (2001).
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3. Conclusion
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296. Id.
297. Id. at 4; see also Kirby, supra note 99, at 1101.
298. COURTS OF FINAL JURISDICTION, supra note 6, at 4.
299. O’Neill, supra note 12, at 123. The three international treaties were: the International
Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Political
Rights of Women; and the International Covenant on Economic Social and Cultural Rights.
300. Id.
301. COURTS OF FINAL JURISDICTION, supra note 6, at 4 (citing Teoh (1995) 183 C.L.R. 273;
Dietrich (1992) 177 C.L.R. 292; Mabo v. Queensl. (1988) 166 C.L.R. 186). See also Kirby, supra note
99, at 1101.
302. Walker, supra note 9, at 305. High Court Justices cannot continue to serve past the age of
seventy by virtue of an amendment to section 72 of the Australian Constitution made as a result of a
1977 referendum. See Rebecca Craske, Retirement of Justices, in OXFORD COMPANION 604 (Tony
Blackshield et al. eds., 2001).
303. Leslie Zines, Gleeson Court, in OXFORD COMPANION 307 (Tony Blackshield et al. eds.,
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307. See generally Kenny, supra note 305; Meagher, supra note 306.
308. See, e.g., Brownlee v. The Queen (2001) 207 C.L.R. 278, 284–85 (Gleeson, C.J. and
McHugh, J.); SGH Ltd. (2002) 210 C.L.R. at 75 (Gummow, J.).
309. See, e.g., Eastman v. The Queen (2000) 203 C.L.R. 1, 46 (McHugh, J.); Brownlee (2001) 207
C.L.R. at 285 (Gleeson, C.J. and McHugh, J.). See also Meagher, supra note 306, at 283.
310. See, e.g., Sue v. Hill (1999) 199 C.L.R. 462, 487–90 (Gleeson C.J., Gummow and Hayne,
JJ.), 524–28 (Gaudron, J.); Grain Pool of W. Austl. v. Commonwealth (2000) 202 C.L.R. 479, 493–97
(Gleeson, C.J., Gaudron, McHugh, Gummow, Hayne and Callinan, JJ.). For a discussion of the High
Court’s “moderate” originalism, see Jeffrey Goldsworthy, Originalism in Constitutional
Interpretation, 25 FED. L. REV. 1, 1 (1997).
311. Austl. Broad. Corp. (2001) 208 C.L.R. at 331–32 (Callinan, J.), 336–37. See also Meagher,
supra note 306, at 265, 283.
312. See, e.g., Abebe v. Commonwealth (1999) 197 C.L.R. 510, 581–82 (Gleeson, C.J., and
McHugh, J.); Grain Pool (2000) 202 C.L.R. at 522–25 (Gleeson, C.J., Gaudron, McHugh, Gummow,
Hayne and Callinan, JJ.); Eastman (2000) 203 C.L.R. at 79–81 (Gleeson, C.J.); A.P.L.A. Ltd. v. Legal
Serv. Comm’r N.S.W. (2005) 224 C.L.R. 322, 442–43 (Kirby, J.). See generally Justice Michael
Kirby, Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?, 24 MELB. U.
L. REV. 1 (2000) (discussing whether the Australian Constitution should be read according to original
intent or modern interpretation).
313. Eastman (2003) 203 C.L.R. at 80.
314. See, e.g., Abebe (1999) 197 C.L.R. at 510 (Gleeson, C.J., Callinan, Kirby, and McHugh, JJ.)
(upholding the validity of sections 476(1), (2), (3), 481(1)(a), 485 and 486 of the Migration Act, 1958
(Austl.)). Justices Gaudron, Gummow and Hayne dissented.
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325. It would appear, however, that Justice Kirby believes he is doing no more than extending the
Lange principle to protect Chapter III. Id. at 440 (Kirby, J.).
326. See, e.g., Zines III, supra note 303, at 307–08 (also quoting the material cited infra note 327).
327. Re Wakim (1999) 198 C.L.R. at 581–82 (Gummow and Hayne, JJ.).
328. A.P.L.A. (2005) 224 C.L.R. at 352 (Gleeson, C.J. and Heydon, J.).
329. Zines III, supra note 303, at 308 (looking to Sue v. Hill (1999) 199 C.L.R. 462, and Egan v.
Willis (1998) 195 C.L.R. 424, as examples).
330. Leeth (1992) 174 C.L.R. at 483–93 (Deane and Toohey, JJ.).
331. (1997) 190 C.L.R. 1.
332. It should be noted, however, that Justice Gaudron did express support for a constitutional
guarantee of equality framed in more limited terms. Id. at 112–14.
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341. It should be noted however, that scholars question whether section 80 is best understood as a
“rights-protective” provision. James Stellios, The Constitutional Jury—“A Bulwark of Liberty”?, 27
SYDNEY L. REV. 113 (2005).
342. Id. at 142.
343. (2000) 203 C.L.R. 248.
344. Id. at 268–70 (Gleeson, C.J., Gummow and Hayne, JJ.), 344–45 (Callinan, J.).
345. (2000) 206 C.L.R. 161.
346. Id. at 170–71 (Gleeson, C.J.), 184 (Gaudron, Gummow and Callinan, JJ.), 205–06 (Kirby, J.),
216 (Hayne, J.). Justice McHugh dissented on this issue. Id. at 188.
347. Wheeler, supra note 340, at 206.
Chapter III of the Australian Constitution, like Article III of the U.S.
Constitution, deals with “The Judicature.” It establishes the High Court of
Australia, 348 including provisions for the appointment, removal, and
remuneration of High Court Justices. 349 Chapter III also contains
provisions describing the High Court’s jurisdiction 350 and dealing with the
Federal Parliament’s powers with respect to the Court’s jurisdiction. 351
The jury trial provision, section 80, is also found in Chapter III. 352
The Gleeson Court has shown a substantial amount of interest in
Chapter III. This section addresses some of the key developments in this
area. 353
Historically, the separation of powers doctrine has been an important
aspect of the High Court’s Chapter III jurisprudence. This doctrine centers
on two related prohibitions:
First, that federal judicial power cannot be exercised by bodies other
than the ‘courts’ identified in section 71 of the Constitution (the
‘first limb’ of the separation doctrine) and, secondly, that federal
courts cannot exercise legislative or executive functions unless
those functions are incidental to judicial power (the ‘second limb’
of the separation doctrine). 354
The Constitution does not expressly adopt the separation of powers
doctrine, though it is firmly established as an implication from the
Constitution’s text and structure. 355 The Gleeson Court has been
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356. Id.
357. (1999) 198 C.L.R. 511.
358. Dung Lam, Case Note: Wakim, 22 SYDNEY L. REV. 155, 156 (2000). Lam provides a
comprehensive discussion of the jurisdictional issues prior to cross-vesting at 156–59.
359. Id. at 159.
360. In each jurisdiction the short title of the Act was the Jurisdiction of Courts (Cross-Vesting)
Act, 1987. The relevant provisions are set out in Re Wakim (1999) 198 C.L.R. at 565–66 (Gummow
and Hayne, JJ.).
361. Jurisdiction of Courts (Cross-Vesting) Act, 1987, § 9(2)(a) (Austl.).
362. Section 4 of the state Cross-Vesting Acts.
363. This scheme was given effect by the Corporations Act, 1989 (Austl.); the Australian
Securities Commission Act, 1989 (Austl.); and the Corporations Act of each state. See Re Wakim, 198
C.L.R. at 566–68 (Gummow and Hayne, JJ.).
364. See supra note 361.
365. In the Re Brown; Ex parte Amann matter.
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374. Id. at 556–63 (McHugh, J.) (Callinan, J. agreeing), 576–82 (Gummow and Hayne, JJ.)
(Gleeson, C.J., and Gaudron, J., agreeing), 600–616 (Kirby, J.).
375. Id. at 556 (McHugh, J.) (Callinan, J., agreeing), 577 (Gummow and Hayne, JJ.) (Gleeson,
C.J., and Gaudron, J., agreeing).
376. AUSTL. CONST. § 51.
377. Re Wakim (1999) 198 C.L.R. at 546 (Gleeson, C.J.).
378. Id. at 580–81 (Gummow and Hayne, JJ.) (Gleeson, C.J., and Gaudron, J., agreeing).
379. Id. at 562 (McHugh, J.) (Callinan, J., agreeing).
Another important facet of the Gleeson Court’s Chapter III work is its
treatment of the Kable principle. Kable v. Director of Public Prosecutions
(N.S.W.), 380 decided eighteen months prior to Gleeson’s appointment as
Chief Justice, concerned New South Wales legislation empowering that
State’s Supreme Court to make an order for the imprisonment of one
named person, Gregory Wayne Kable, for a specified period of time to
prevent him from committing future crimes. 381 A majority of the High
Court held the New South Wales legislation was unconstitutional on the
basis of a principle, formulated differently by each Justice, derived from
Chapter III of the Constitution.
Justice Toohey held that a state court exercising federal jurisdiction
(which he concluded had occurred in Kable) may not act in a manner
“incompatible” with Chapter III. 382 In Justice Toohey’s opinion, the issue
of incompatibility arose in Kable because the state legislation directed the
Supreme Court to act inconsistently with “traditional judicial process,”
particularly because the legislation was aimed at one named person and
would therefore diminish public confidence in the judiciary. 383
Justice Gummow, also emphasizing that the State Supreme Court in
this case was exercising federal jurisdiction, 384 agreed that the New South
Wales legislation directed the Supreme Court to act in a manner
“repugnant to judicial process.” 385 Pointing out that the legislation
required the Supreme Court to punish Kable “without any anterior finding
of criminal guilt by application of the law to past events,” Justice
Gummow expressed concern that the judiciary would be “seen as but an
arm of the executive which implements the will of the legislature.” 386
Justice Gummow held that the Kable legislation attempted to impair the
New South Wales Supreme Court in contravention of a mandate arising
from the constitution and which operated to protect federal judicial power
“as and when it may be invested.” 387
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388. Id.
389. Id. at 102 (Gaudron, J.).
390. Id. at 107.
391. Id. at 116 (McHugh, J.).
392. Id.
393. Id. at 124.
394. See generally Elizabeth Handsley, Do Hard Laws Make Bad Cases?—The High Court’s
Decision in Kable v. Director of Public Prosecutions (N.S.W.), 25 FED. L. REV. 171 (1997); Peter
Johnston & Rohan Hardcastle, State Courts: The Limits of Kable, 20 SYDNEY L. REV. 216 (1998);
Rohan Hardcastle, A Chapter III Implication for State Courts: Kable v. Director of Public
Prosecutions, 3 NEWCASTLE L. REV. 13 (1998–1999).
395. In addition to the cases considered in this section, see also H.A. Bachrach Proprietary Ltd. v.
Queensl. (1998) 195 C.L.R. 547, a Kable case regarding Queensland legislation which had the effect
of permitting a proposed land development. The Court unanimously upheld the legislation’s validity.
Id.
the Court appeared reluctant to fully tackle Kable and its potential
ramifications. For example, in McGarry v. The Queen, 396 a case in which
the appellant sought to raise a Kable challenge to the validity of Western
Australia’s indefinite imprisonment legislation, 397 the Court considered it
unnecessary to deal with the Kable issue because the appeal was allowed
on other non-constitutional grounds. 398 Subsequently, in Silbert v. Director
of Public Prosecutions (W. Austl.), 399 the Court rejected a Kable challenge
to Western Australia’s criminal confiscation legislation, yet gave only
brief reasons for doing so. If the Gleeson Court was, as has been
suggested, reluctant to confront Kable, such reluctance was entirely
understandable. Although much of the legal reasoning in Kable appeared
to sit uncomfortably with the Gleeson Court, the Court’s respect for
precedent meant that overruling Kable was not really an option. Arguably
there was only one answer: Kable would have to be narrowed. 400
A clear opportunity for the Gleeson Court to deal with Kable arose in
Fardon v. Attorney General (Queensl.). 401 Fardon concerned a
constitutional challenge to Queensland legislation that empowered the
Queensland Supreme Court to order terms of indefinite imprisonment for
prisoners already serving prison terms for a “serious sexual offence.” 402
Fardon was delivered simultaneously with Baker v. The Queen, 403 in
which the Court rejected a weaker Kable challenge to legislation
concerning the New South Wales Supreme Court’s power to make an
indeterminate life sentence a determinate sentence. In Fardon, the
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In the result, each member of the majority held that the Fardon
legislation did not purport to confer a function on the Queensland Supreme
Court that was incompatible with that Court’s institutional integrity. 412 In
reaching this conclusion, the form of the legislation was critical, in
particular that the State Supreme Court’s function under the legislation
was “consistent with its judicial character” because the Court had
substantial discretion whether to make an order and, if so, what type of
order to make. 413 Additionally, the legislation included several procedural
safeguards, such as requiring annual reviews by the Supreme Court of
continuing detention orders. 414
Although there remains a degree of disagreement among the majority
Justices about how far Kable should be restricted, 415 it is clear that the
Gleeson Court has significantly narrowed the scope of the Kable
principle—to the great relief of the States.
4. Austin v. Commonwealth
notion is that of repugnancy to or incompatibility with [the] institutional integrity of the State courts”),
656 (Callinan and Heydon, JJ.) (asking whether the “integrity and independence as a court are . . .
compromised”).
412. Id. at 592 (Gleeson, C.J.), 598 (McHugh, J.), 621 (Gummow, J.) (Hayne, J., agreeing), 658
(Callinan and Heydon, JJ.).
413. Id. at 592 (Gleeson, C.J.). See also id. at 596–97 (McHugh, J.), 657–58 (Callinan and
Heydon, JJ.).
414. Id. at 619–21 (Gummow, J.) (Hayne, J., agreeing), 656–58 (Callinan and Heydon, JJ.).
415. Chief Justice Gleeson and Justice McHugh (writing separately) and Justices Callinan and
Heydon (in a joint judgment) seem most intent on narrowing Kable. Justice Gummow’s judgment
suggests an inclination to allow a less narrow application of the principle, expressing the view that the
Fardon legislation’s outcome “could not be attained in the exercise of federal jurisdiction.” Id. at 614
(Gummow, J.). Justice Hayne agreed with Justice Gummow generally but reserved his opinion on the
federal jurisdiction question. Id. at 647–48.
416. Austin (2003) 215 C.L.R. 185. See also Anne Twomey, Federal Limitations on the
Legislative Power of the States and the Commonwealth to Bind One Another, 31 FED. L. REV. 507
(2003).
417. Engineers’ Case (1920) 28 C.L.R. at 155 (Knox, C.J., Isaacs, Rich and Starke, JJ.).
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the Income Tax Assessment Act, 1936 (Austl.). At that time, the Income
Tax Regulations, 1936 (Austl.) declared certain funds to be
“constitutionally protected funds,” including state statutory schemes which
provided pensions and other benefits to state judges. 425
High Court proceedings were initiated by two state judicial officers
who claimed, inter alia, that the Imposition Act and the Assessment Act
were invalid. One question was obvious: were these Acts invalid in their
application to the first plaintiff (a Justice of the New South Wales
Supreme Court) “on the ground that they so discriminate against the States
. . . or so place a particular disability or burden upon the operation and
activities of the States, as to be beyond the [Federal Parliament’s]
legislative power?” 426 As noted by Chief Justice Gleeson, the
constitutional limitation raised was an implied limitation, “said to result
from the federal nature of the Constitution as a matter of necessary
implication.” 427
In a five-to-one decision (Justice Kirby dissented), the Court held both
federal Acts invalid in their application to the first plaintiff because they
imposed a particular disability or burden on the operations and activities of
New South Wales. 428 Thus, the concept of “discrimination” in the context
of intergovernmental immunities was critical to the majority’s decision.
First, the majority dealt with the content to be given to Melbourne
Corporation’s concept of “discrimination.” For example, was
discrimination against a State merely “an illustration of a law impairing
the capacity of a State to govern” or did it have “a standing of its own?” 429
In an uncharacteristic departure from precedent, the joint Justices and
Justice Kirby rejected the “two-limb” Melbourne Corporation approach,
preferring a single test. 430 Justices Gaudron, Gummow and Hayne
explained:
There is . . . but one limitation, though the apparent expression of it
varies with the form of the legislation under consideration. The
question presented by the doctrine in any given case requires
assessment of the impact of particular [federal] laws by such criteria
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431. Id. at 249. This majority’s approach may be contrasted with Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. 528, 546–47 (1985), which rejected as “unsound in principle and unworkable
in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of
whether a particular governmental function is ‘integral’ or ‘traditional.’” There is, however, a real
question as to whether this stance was reconsidered in Gregory v. Ashcroft, 501 U.S. 452, 460 (1991),
which deemed it relevant that a State’s mandatory judicial retirement provision “is a decision of the
most fundamental sort for a sovereign entity.”
432. Austin (2003) 215 C.L.R. at 261 (Gaudron, Gummow and Hayne, JJ.).
433. Id.
434. Id. at 261–62.
435. Id. at 262–63.
436. Id. at 263.
437. Id. at 219–20 (Gleeson, C.J.).
438. Id. at 219.
439. Id.
Justice McHugh departed from the majority on the question of the two-
stage approach. 440 However, his reasoning as to why the Austin legislation
was invalid was similar to that of Chief Justice Gleeson and the joint
Justices. Justice McHugh emphasized that this legislation discriminated
against state judicial officers “in a way that interferes in a significant
respect with the States’ relationships with their judges.” 441 In Justice
McHugh’s view, this legislation singled out state judges by placing a
“financial burden on them that no one else in the community incurs.” 442
Justice Kirby, the only dissenter, expressed his agreement with much of
the joint Justices’ analysis of the Melbourne Corporation doctrine 443 and,
in particular, agreed that the two limbs of the doctrine identified in
previous cases were really “manifestations of the one constitutional
implication.” 444 Justice Kirby agreed that States must retain power over
their selection and retention of judges, including power over judicial
remuneration (which included judicial pension entitlements). 445 Where
Justice Kirby disagreed with the joint Justices was whether imposing the
federal surcharge tax had “a significant and detrimental effect on the
power of a State to determine the terms and conditions affecting the
remuneration of its judges.” 446 In Justice Kirby’s view, the answer was
negative because appropriate candidates would continue to be willing to
take up positions as state judges despite the financial disadvantages
imposed by this federal legislation. 447
Austin conferred constitutional immunity on state judges from this
federal tax. It reaffirmed the importance both of federalism as a
constitutional principle and of the Melbourne Corporation doctrine as a
way of protecting States’ independence from federal interference. From a
comparative perspective, the High Court’s reasoning resonates with that of
Gregory, a U.S. case dealing with a constitutional challenge to a
mandatory retirement provision for judges in the Missouri Constitution.448
Gregory underlines the growing significance of a line of authority in
American constitutional law recognizing “the authority of the people of
the States to determine the qualifications of their most important
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6. Conclusion
The Gleeson Court has significantly retreated from the Mason Court’s
activist approach to the exercise of judicial review and, in doing so, has
sought to reaffirm the Court’s commitment to constitutional legalism. 462
This is particularly evident in the Gleeson Court’s reluctance to recognize
new constitutionally implied rights or freedoms, and its treatment of the
implied freedom of political communication and the Kable doctrines.
However, the range of approaches among the Gleeson Court Justices—
particularly with respect to drawing constitutional implications—may lead
to different (and perhaps surprising) results in future cases. Moreover, the
Gleeson Court’s legalism does not mean the Court is unwilling to deliver
decisions that are protective of vulnerable persons, as Crampton 463
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CONCLUSION
Two key points emerge. First, despite the lack of express authorization
in the Constitution, judicial review has been an accepted part of
Australia’s constitutional system since Federation. Second, the High
Court’s exercise of its judicial review power has been marked by an
enduring commitment to constitutional legalism, a commitment only
briefly interrupted by the Mason Court.
In the High Court’s formative years, although there were some early
signs of a more creative approach to constitutional interpretation, the
Engineers’ Case 465 established a constitutional methodology of strict
legalism that has since dominated the Court’s constitutional decision-
making. When applied to the interpretation of section 117 of the
Constitution, the legalistic approach narrowed that provision in a way that
was not only contrary to its purpose but dramatically reduced section
117’s rights-protective potential. As demonstrated by the Communist
Party Case, 466 however, the High Court was not afraid to exercise its
judicial review power to strike down legislation it considered to involve an
unconstitutional exercise of legislative power—despite the political
pressures surrounding the case.
The second phase considered by this Article—that of the Mason
Court—was a period of great change for the High Court. In line with the
Court’s new position at the apex of Australia’s judicial system and
Australia’s growing sense of national and international identity, the Mason
Court broke with the past and adopted a more robust approach to its
judicial review power. The early High Court’s focus on text was
broadened to also give effect to purpose. The traditional view of the
Constitution as primarily concerned with federalism was replaced with a
conception that included an overt concern for the protection of individual
rights. There was an increased willingness to overturn precedent, to take
into account developments in international and foreign law, and frankness
about its policy-driven approach to judicial decision-making. The Mason
Court’s activism was, however, the source of a good deal of controversy.
467. Leighton McDonald, Rights, ‘Dialogue,’ and Democratic Objections to Judicial Review, 32
FED. L. REV. 1, 6 (2004); Seitz, supra note 36, at 4.
468. Id. at 7.
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